April 20th, 2013
05:38 PM ET
2 years ago

Should Boston bombing suspect get a Miranda warning? Debate follows Friday capture

(CNN) - As Boston celebrated the capture of a suspect in the marathon bombings Friday night, a debate erupted in Washington over whether military or civilian law would best handle Dzhokar Tsarnaev.

“This guy didn’t rob a liquor store. He wasn’t working for the Mafia,” Sen. Lindsey Graham, R-South Carolina, said Saturday on Fox News. “My God, they were at war with us, we need to be at war within our values and within our laws.”

He and several other Republican lawmakers called on President Barack Obama and prosecutors at the Justice Department to treat Tsarnaev, at least initially, as an enemy combatant under military law – and without certain protections such as an attorney – rather than through the civilian courts as a criminal suspect, where his route begins with a reading of the Miranda rights. The designation as an “enemy combatant” has precedence and would be appropriate here, Graham and others say.

The hospitalized Tsarnaev is in federal custody, and prosecutors are preparing terrorism and possibly other charges against him, a Justice Department official told CNN. He could also face state-level murder charges, but the death penalty would not be an option under Massachusetts law. Federal authorities could pursue the death penalty.

Twelve hours after capture Tsarnaev had not been read those Miranda rights, which include the right to remain silent, the right to an attorney regardless of financial circumstances and the warning that any statements can be used to aid his prosecution.

A Justice Department official said federal prosecutors would use the public safety exception to the Miranda rule, which allows investigators to question a suspect before apprising him of his rights when they believe there is an imminent public safety threat. Federal officials called in the interagency High Value Detainee Interrogation Group, which includes investigators from the FBI and CIA who specialize in collecting intelligence from terrorism suspects, to question Tsarnaev.

After the Friday capture, Obama commended authorities’ efforts and said the surviving Tsarnaev would move through the court system.
"When a tragedy like this happens, with public safety at risk and the stakes so high, it's important that we do this right,” he said. “That's why we have investigations. That's why we relentlessly gather the facts. That's why we have courts. And that's why we take care not to rush to judgment - not about the motivations of these individuals; certainly not about entire groups of people.”

In addition to Graham, Republicans Sens. John McCain of Arizona and Kelly Ayotte of New Hampshire, joined by Republican Rep. Peter King of New York, commended investigators for not reading Tsarnaev the Miranda rights but said they were concerned investigators would soon do so.

“We have concerns that limiting this investigation to 48 hours and exclusively relying on the public safety exception to Miranda, could very well be a national security mistake. It could severely limit our ability to gather critical information about future attacks from this suspect,” they said.

Separately, King said Friday night after the suspect was taken into custody, “The fact that these terrorists were from overseas, living legally in our country for a period of time, and the fact that there was no federal intelligence or chatter prior to the marathon bombings demonstrates once again the Islamist terrorist threat to our country from within our borders.”

Sen. Saxby Chambliss, R-Georgia and a member of the Senate Select Committee on Intelligence, issued his own statement saying, "This is not an ordinary criminal case, and a brief interrogation under that exception is wholly insufficient. Our courts, including the Supreme Court, allow detaining and interrogating terrorism suspects as enemy combatants, regardless of citizenship, and there is no reason to not follow that precedent here."

Juliette Kayyem, a former assistant secretary of Homeland Security and CNN national security analyst, said Saturday that to debate the issue was “absurd.”

“I think it’s an important statement especially after what this city went through to say, ‘Yup, now you’re just a normal criminal and we’re just going to put you through the process,’ ” she said, adding that the initial use of the public safety exemption was justified.

Sen. Carl Levin, D-Michigan and the Armed Services Committee chairman, noted an enemy combatant declaration could be made under the 2001 war declaration of Congress, which authorized action against al Qaeda, the Taliban and related groups.

"I am not aware of any evidence so far that the Boston suspect is part of any organized group, let alone al Qaeda, the Taliban, or one of their affiliates," he wrote Saturday in a statement which appeared to rebut the GOP senators' statement.

"In the absence of such evidence I know of no legal basis for his detention as an enemy combatant. To hold the suspect as an enemy combatant under these circumstances would be contrary to our laws and may even jeopardize our efforts to prosecute him for his crimes."

The American Civil Liberties Union said the U.S. should “not waver from our tried-and-true justice system, even in the most difficult of times. Denial of rights is un-American and will only make it harder to obtain fair convictions.’

"Every criminal defendant is entitled to be read Miranda rights,” the group said in a statement. “The public safety exception should be read narrowly. It applies only when there is a continued threat to public safety and is not an open-ended exception to the Miranda rule. Additionally, every criminal defendant has a right to be brought before a judge and to have access to counsel.”

Rep. Adam Schiff, a California Democrat and a member of the House Intelligence Committee, said investigators were appropriately using the public safety exception but should not declare him an enemy combatant.

“This is not a foreign national caught on an enemy battlefield, but an American citizen arrested on American soil,” he said in a statement. “The Justice Department has demonstrated a far greater ability to successfully prosecute suspected terrorists in federal courts than the military commissions have thus far been able to show. Nothing must be done to compromise the public safety, the ability of prosecutors to seek justice for the victims or our constitutional principles.”

In recent examples of domestic terrorism handled by the Obama administration, individuals initially questioned under the public safety exemption were later tried in civilian court rather than held as enemy combatants. Umar Farouk Abdulmutallab and Faisal Shahzad were tried and convicted of their foiled or failed bombing attempts – Abdulmutallab for plotting to blow up an airplane on Christmas in 2009 and Shahzad for his 2010 attempt to detonate a bomb in Times Square.

“The FBI has been very successful even after giving the Miranda warnings to these subjects to get them to talk about what they’ve done, to get them to cooperate,” said Tom Fuentes, a former assistant director of the FBI and CNN law enforcement analyst.

The interrogations, he said, would be focused on public safety because “we don’t know if they’ve placed additional devices, booby traps or have a separate cache of weapons and explosive material somewhere in the Boston area.”

“They really, to be frank, they don’t need his confession to prosecute and convict him,” he said. “There’s going to be more evidence in this case than you’d have in almost every other case that you have because they’re on video, you have the forensics, you have these murders of police. There is … no need for the Miranda warning in this case. ”

It was not clear how long the public safety exemption could be used. Attorney General Eric Holder wrote in a 2010 memo the FBI believed “that in light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation than would be permissible in an ordinary criminal case.”

The brothers were immigrants to the U.S. from the Russian Caucasus, an area that includes Chechnya and Dagestan. Tsarnaev was born in Kyrgystan, came to the United States in 2002, and became a citizen on September 11, 2012. His older brother was not a U.S. citizen but was in the country legally.

– CNN’s Carol Cratty, Ted Barrett and Deirdre Walsh contributed to this report

soundoff (276 Responses)
  1. Anonymous

    "He lost all of his rights that this country so generously gave him when he deliberately and diabolically attacked the homeland and its people. Period."

    Glorifying him as some sort of foreign born terrorist isn't a good idea. McVeigh was tried as an American and excecuted as an American. Same set of rules apply to Dzhokar Tsarnaev.

    April 21, 2013 10:46 am at 10:46 am |
  2. Anonymous

    "He lost all of his rights that this country so generously gave him when he deliberately and diabolically attacked the homeland and its people. Period."

    Glorifying him as some sort of foreign born terrorist isn't a good idea. McVeigh was tried as an American and e.xecuted as an American. Same set of rules apply to Dzhokar Tsarnaev.

    April 21, 2013 10:47 am at 10:47 am |
  3. Michael P

    Whether he is mirandized or not, it doesn't have any bearing as to whether he would want to speak or divulge information. He grew up in this country. I believe from Age 7 to now, 19. Surely, he might have seen Law and Order (I read he had all the benefits of a standard Middle Class Upbringing: Technology, Great Schools, quality education.) and Miranda is prominently featured on every episode, or any program on TRUtv. So, unless you plan to waterboard or torture him for information, nothing can compel him to speak. I know I am be in the minority when it comes to what I'm about to say, but its my opinion: This kid participated and committed horrendous things, however, I believe he was heavily influenced by his older brother, who I read was an aspiring boxer and loved the US until his machismo got in the way and he beat the crap out of his girlfriend/wife (not sure). All endorsements ended (domestic violence is a hot issue these days) and with no means of providing for himself (he didn't go to school if I recall), he became a malcontent and grew hostility towards the US. As we all know, misery loves company – he was a wash-out and no one would take him seriously or believe anything he said was credible. Enter his younger brother. I'm sure he looked at his up and coming bright younger brother and began a targeted socio-pathic brainwash. No doubt, he knew right from wrong. He will be tried by a jury of his peers – let's not forget he is a US Citizen and the MOMENT you take that oath, you are "conferred all the rights and privileges thereto." Period. No matter how horrendous the terrorist act is, a citizen cannot be denied due process and equal protection of law. Timothy McVey killed many more people in 1995 than these individuals (all I keep hear on the nears is JIHAD this and JIHAD that, Stop the sensationalism) and this public mob, because this kid was not born here and clearly not white-american like McVey, advocates treating him differently. Come on, people. Don't forsake your values because you're in the heat of the moment. Cooler heads will always prevail.

    April 21, 2013 10:52 am at 10:52 am |
  4. freedom

    Even though he is completely guilty, we as Americans are better then that. He still deserves a trail by a jury of his peers. To deny him such would set a dangerous precedent that when we don't feel like it we can just not have a trial. if you think the government won't try to use that at other point you are sadly mistaken. All US Citizens deserve trials even twisted ones. Even Timothy McVeigh who killed far more people got a trial. Serial rapists, murders and other far more evil people get trials, why is he any different. I know that's not popular but it's the rigth thing to do. It's what makes us as American better then anyone else on this earth. We have rights and they cannot be taken away.

    April 21, 2013 11:00 am at 11:00 am |
  5. tomsquawk

    let's have a trial. in the very least it will be entertaining and will be another red herring along with gun control & immigration. and, in the American Way, we can all make money from it.

    April 21, 2013 11:16 am at 11:16 am |
  6. FREEDOM

    @freedom

    This is my comment:
    He lost all of his rights that this country so generously gave him when he deliberately and diabolically attacked the homeland and its people. Period.

    April 21, 2013 11:43 am at 11:43 am |
  7. Yoda

    Americans... think background checks violate the 2nd amendment but no problem flushing down the entire constitution by suspending the rights of citizens charged with crimes before proven guilty in a court of law. There is no hope for this country

    April 21, 2013 11:44 am at 11:44 am |
  8. bear

    Rather than trying to exempt guys like this from our legal process, its time to fix it. Jodi Arias killed her boyfriend in 2008 and 5 years later is finally standing trial. The constitution guarantees both the accused and the public a "speedy trial". We need to start holding both sides accountable to having a trial within 4 months, appeal within 2 months and total process done in no more than 8 months.

    There is no reason this guy would not be convicted in a normal trial. Just get on with it and get it done.

    April 21, 2013 12:02 pm at 12:02 pm |
  9. Frank

    Another example of stepping on the rights of citizens of the good old U.S.A.. I was always under the assumption you are innocent until proven guilty. The guy is a scum bag but lets do this right, after all we don't live in Cuba or Russia.

    April 21, 2013 01:00 pm at 1:00 pm |
  10. GI Joe

    There's no debate on these blogs or in D.C. or any news room. There is hate, lies, fear, prejudice and opinion. Nothing more. The hate and prejudice are predominant.

    April 21, 2013 01:34 pm at 1:34 pm |
  11. A Girdner

    Just because they don't read you your Miranda rights, doesn't me you don't have them. He's a citizen, the 5th Amendment still applies:
    "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

    April 21, 2013 01:37 pm at 1:37 pm |
  12. jmtnurse

    I personally feel he does not deserve any rights. Neither him nor his brother thought of the rights of the people they injuried or killed. Why does he deserve more consideration than them? I also agree with Senator McCain, he should be treated as an enemy combatant. As the old saying goes, " if you can't do the time then don't do the crime ".

    April 21, 2013 01:52 pm at 1:52 pm |
  13. mike johnson

    ... I can't believe we are even having this discussion ... he is a US citizen for crying out loud ... of course The constitution applies. Isn't that what these whole ware on terrorism is all about? ... to protect our way of life? ... unbelievable how dense some some people are.

    April 21, 2013 02:52 pm at 2:52 pm |
  14. Traveler

    These boys had so many opportunies in this country and so many freedoms. If they were so unhappy here they also had the freedom to leave. I can't imagine how much his medical care is costing us, I'm sure the trial won't be cheap either.

    April 21, 2013 02:55 pm at 2:55 pm |
  15. Randy

    what a bunch of morons on these pages. Miranda is not a magic wand to bestow his rights on him and without it he has been deprived of it. I was in law enforcement for 34 years and was working when Miranda was decided. Miranda came about after a migrant fruit picker, Joseph Miranda, an illegal alien, was arrested and wasn't aware that he didn't need to talk if he didn't want to. He was determined illiterate. When our district court judge explained this decision to our group of officers he put it this way. "Miranda was an illiterate Mexican......and with a big swoop of their hands, the supreme court made us all illiterate Mexicans." Now all citizens have to be treated like illiterate Mexicans." They do not need his statements as they have enough evidence without it. No Miranda needed. Period.

    April 21, 2013 02:59 pm at 2:59 pm |
  16. Tom

    We should not be using the "enemy combatant" exception for American citizens or people here legally. Its not about what he "deserves" – he is an evil terrorist who deserves nothing. Its about us following our laws and not allowing a corruption of our system. If we start making exceptions and start taking away rights for this or that scenario then we set up a legal precedent without end. Frankly, I don't want Lindsay Graham deciding who has what rights, thank you very much.

    He will be tried by a jury or by a judge and be executed unless he makes a plea deal to give information in exchange for a life sentence. That is how this should work. Let's follow our laws. There is no need to change them.

    April 21, 2013 03:18 pm at 3:18 pm |
  17. Mark

    Anonymous

    "He lost all of his rights that this country so generously gave him when he deliberately and diabolically attacked the homeland and its people. Period."

    Glorifying him as some sort of foreign born terrorist isn't a good idea. McVeigh was tried as an American and excecuted as an American. Same set of rules apply to Dzhokar Tsarnaev.

    And bear properly notes "There is no reason this guy would not be convicted in a normal trial. Just get on with it and get it done"

    There is nothing to suggest, at all, that this person will not be convicted – and if so sentenced – given the death penalty; I have no issue with the public safety exemption – but enemy combatant just strikes me as overkill.

    April 21, 2013 03:38 pm at 3:38 pm |
  18. Andrea

    It seems to me that as an American Citizen he is entitled to Miranda Rights. The press keeps saying that he and his brother acted alone. They cannot tie the younger brother to any radical group. Yes it is true that his brother became more radical as he grew older, and had Jihad beliefs, but they cannot link him to any group specifically. So, if there is no link to a radical group how is this terrorism any different than the terrorist acts of the Colorado killer last summer and Timothy McVey? Both were read their rights. Both had radical crazy views. Both killed between the two of them dozens. This man needs his rights to be read. It is unconstitutionl not to and if we start making exceptions for him because of the factthat the act was so terrible, who wil be next, and next? The authority of the government will prevail over the rights of the people it serves. I pray officials do the right thing and read him his rights. All wll come out in a court of law, but we need to do this the right lawful way.

    April 21, 2013 04:17 pm at 4:17 pm |
  19. mir

    If the evidence warrants it, charge him in accordance with existing criminal law statutes....this illegal combatant status is contrary to international law and is remnant of the Dubya years ....the Unabomber and McVeigh were charged under criminal law statutes,,,,not this illegal combatant crap

    April 21, 2013 04:48 pm at 4:48 pm |
  20. al

    In the moment the rights of this guy are removed, the rights of other people can be removed by precedent. Very dangerous. Read his rights. Allow him a lawyer. If you are so sure this is the guy that committed the act to have martial law deployed in Boston to capture him then the evidence in court will show up.

    April 21, 2013 05:20 pm at 5:20 pm |
  21. nicholascoote

    US will bring shame on itself it law enforcement officers in Boston do not read Tsarnaev his Miranda rights – it is a key stone to Freedom and I dont understand how or why any right minded American would have it any other way. Please do not behave like an angry lynch mob with your thinking. Here in London we understand these things – were not soft liberals but in the face of such awful events the correct response is to keep true to the values of Freedom, do not let anger corrupt your response, live your lives normally. The mantra is simply put "Keep Calm and Carry On" – this is the post powerful message American society can send.

    April 21, 2013 05:40 pm at 5:40 pm |
  22. caddoninetales

    Consider this scenario for argument's sake – government needs a reason to go to active war with (insert middle eastern country). They find two patsies. Unidentified "Armenian" radical befriends patsies. CIA tails said patsies and takes video and still photos of them walking down Boston streets. CIA operatives that resemble patsies dress in same clothing as in video footage. One drops bag near marathon victims and makes a point of being recognized. Agents show photoshopped marathon photos to victim – lo and behold, he recognizes the man that dropped the bag near him. Now, they have probable cause to hunt patsies, who until now have been acting normally because everything was normal. They see themselves on the news as suspects. They run. CIA agents rob 7/11, kill police officer. More reason to hunt the patsies. Dead body of one patsy displayed. We are told there was an IED, but no evidence, no photos. We are shown Amazon accounts, twitter accounts, etc (all easily set up and developed by anyone). Perhaps Armenian friend (CIA agent) helps 2nd patsy evade search parameter and hides him a block outside of search area. When 2nd patsy is erroneously found, he must be contained and silenced. He is photographed with enough strength to get out of the boat alone, but moments later is seen bloody, lying on the ground being bagged to resusitate him. He has injury to throat. Now he can't speak. Will soon there surface a "written" confession that points the finger at (Middle Eastern country previously inserted)? If so, what red blooded American would object to us engaging in yet another decade long incredibly expensive retaliation war?
    No trying to retract from what the people of Boston endured. It was a tragedy. My only question is are we sure who caused it?

    April 21, 2013 05:47 pm at 5:47 pm |
  23. norma jean

    Why not wait until we see if he is going to live before we get all tied up in his civil rights..etc.. He has been wounded and may not be available for all this massive conjecture!!!!!

    April 21, 2013 05:48 pm at 5:48 pm |
  24. Neutral Observer

    I remember some years ago, a Detroit autoworker was accused of being a war criminal from ww2. Even though he was made a us citizen in 1950's, his citizenship was revoked. Why can't they do the same with this guy? If there are constitutional issues, we could just say it's "regulation" and be done with it.

    April 21, 2013 10:03 pm at 10:03 pm |
  25. J.V.Hodgson

    Lets get it clear the Miranda rights are there in general terms to protect the innocent and those of lesser intelligence from thier police or Intelligence agency interrogators, the latter who can lie to extract damaging statements or information from suspects or alleged criminals. Per SCOTUS.
    In todays world in America anyone arrested for a crime or an act of so called terrorism has only one rule to follow " say nothing, zero, zilch" until after you speak to a lawyer. Its just plain and simple commonsense.
    Personally, other than to my lawyer, to allow him the ability to contest witness evidence I would speak only two words from beginning to end "Not guilty" whenever wherever questioned. My lawyer would put me on the stand to say just those words. Cross examination would start with I repeat I am not guilty and you must prove I am not if untrue. Other than that its the 5th amendment. ( I would not voice the words) I say this once only as to all prosecutors questions the answer is the same. he could rattle off ahundred questions and the judge could threaten me with contempt, and I would say with respect sir he has had my answer, do I really need to record it and replay it ad nauseum its a constituional right. Evidentially re the crime etc nothing is added for the jury to judge the evidence either way.
    My point is its all about Miranda rights. What happened to the living alleged criminal or terrorist citizens right ( Boston marathom acts) to the 5th amendment. I refuse to answer etc.. the survivor criminal terrorist is an american citizen. You cannot force a person to speak and have his/ her utterances used against them if obtained by illegal means....( = to me at least that is what is said voluntarily) without force physical or mental and mental or physical deprivation of any kind.
    Regards,
    Hodgson.

    April 22, 2013 01:36 am at 1:36 am |
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